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The special inquiry officer, in a long and thorough decision, has set forth the treaties and statutes relating to acquisition of United States citizenship by a person born in Puerto Rico and no purpose would be served by repeating them at length. We shall however set forth the provisions of section 5 and section 5b of the Act of March 2, 1917 as amended by June 27, 1934 and Article 17 of the Civil Code of Spain as amended by the Act of December 9, 1931. The former provides as follows:

Section 5. That all citizens of Puerto Rico as defined by section seven of the Act of April twelfth, nineteen hundred ... and all natives of Puerto Rico, who were temporarily absent from that island on April eleventh, eighteen hundred and ninety-nine, and have since returned and are permanently residing in that island, and are not citizens of any foreign country, are hereby declared, and shall be deemed and held to be citizens of the United States ... (8 U.S.C. 5). (Emphasis supplied.)

Section 5b (added by the Act of June 27, 1934). All persons born in Puerto Rico on or after April 11, 1899 (whether before or after the effective date of this Act) and not citizens, subjects, or nationals of any foreign power, are hereby declared to be citizens of the United States: Provided, That this Act shall not be construed ... to extend such citizenship to persons . . . who are now residing permanently abroad and are citizens or subjects of a foreign coun. try ... (Emphasis supplied.) (48 U.S.C. 733b)

The Civil Code of Spain, as amended by the Act of December 9, 1931 provides as follows:

Article 17. The following persons are Spanish nationals:... (2) A person whose father or mother is a Spanish national, even if that person was born outside of Spain. (Laws Concerning Nationality, United Nations Legislative Series, ST/LEG/SER. B/4, 1954, Page 437).

It is clear at the outset that the respondent's father, who was a nativeborn Spanish citizen and who did not come to Puerto Rico until 1913 or 1914, did not acquire Puerto Rican nationality or United States citizenship; neither did respondent's mother. There is no question then of derivative citizenship through either parent. The respondent, who was born in Puerto Rico after April 11, 1899, to wit, on October 4, 1931, was at birth a Spanish national under Article 17 of the Civil Code of Spain and does not qualify either under section 5 or section 5b of the Act of March 2, 1917 since she was a citizen or national of a foreign power, namely, Spain. It may be noted that birth in Puerto Rico prior to January 13, 1941 did not result in vesting of United States citizenship under the provisions of section 202 of the Nationality Act of 1940 or its successor statute, section 302 of the Immigration and Nationality Act, if the person so born was not actually or constructively a resident of Puerto Rico on January 13, 1941.3

. Cf. Conrad v. Dulles, 155 F. Supp. 542 (D.C. P.R., 1955). Puig Jimenez v. Glover, 255 F.2d 54 (1 Cir., 1953).

It is quite clear that the respondent and her family abandoned their residence in Puerto Rico in 1931 and resided in Spain thereafter, with the intention and the actual effect of taking up permanent abode there. The respondent was never prevented from returning to her residence in Puerto Rico and did not have any constructive residence in Puerto Rico. For that reason she does not fall within the scope of section 202 of the Nationality Act of 1940 or section 302 of the Immigration and Nationality Act.

The respondent's father did not reside in Puerto Rico on April 11, 1899 or at any time prior to 1913. Therefore, he did not acquire any claim to United States nationality under Article 9 of the Treaty of April 11, 1899 or to Puerto Rican nationality under the provisions of section 7 of the Act of 1900. The respondent's father could not have opted to retain Spanish nationality because that option could only be exercised by Spanish subjects, natives of the Spanish peninsula, residing in Puerto Rico on April 11, 1899, not by those, like the respondent's father, who became residents thereafter. Those born after the date of April 11, 1899, whose parents had opted their Spanish nationality, were clearly not United States nationals or citizens.

Counsel has cited section 10 of the Political Code of Puerto Rico of 1902 and Article IX, section 5 of the Constitution of the Commonwealth of Puerto Rico to buttress his argument that the respondent at least acquired Puerto Rican nationality, if not United States citizenship. The United States citizenship or nationality of natives of Puerto Rico is effected only through the Treaty of April 11, 1899 between the United States and Spain and the applicable statutes, such as the Act of April 12, 1900, the Act of March 2, 1917, as amended by the Act of June 27, 1934, section 202 of the Nationality Act of 1940 and section 302 of the Immigration and Nationality Act. Hence, no Puerto Rican law or constitutional provision in derogation of or contradiction of any United States treaty or statute is effective."

By virtue of the provisions of Article 17 of the Civil Code of Spain as amended by the Act of December 9, 1931, the issuance to her of a national document of identity as a Spanish citizen as early as January 14, 1952, which she admitted in her affidavit of 1956 executed before the United States Consul at Madrid, and the issuance to her of a Spanish passport, the respondent was a citizen of Spain at birth. Inasmuch as she was a citizen, subject or national of a foreign power, to wit, Spain, residing abroad permanently on June 27, 1934, she did not acquire United States citizenship on that date by virtue of the provi. sions of section 5b of the Act of March 2, 1917 as amended by the Act of 1934. The respondent could have acquired United States nationality or citizenship by virtue of birth in Puerto Rico under no other provision of law. Hence, the respondent is an alien and is deportable as charged in the order to show cause. The attorney has specifically declined to request the privilege of voluntary departure. The order of deportation entered by the special inquiry officer is the only order possible under the circumstances.

* Conrad v. Dulles, 155 F. Supp. 542; Matter of 0- M—, Int. Dec. No. 1124. 5 Puerto Rico v. Shell Co., 302 U.S. 253: Downes v. Bidwell, 182 U.S. 244 (1901).

ORDER: It is ordered that the appeal from the order of the special inquiry officer dated November 6, 1962 be and the same is hereby dismissed.

MATTER OF GARDOS

In DEPORTATION Proceedings

A-11845805

Decided by Board May 7, 1963

An alien convicted in 1956 of unlawful possession of marihuana in violation of

section 4, paragraph 1, of the Opium and Narcotic Drug Act of Canada, is deportable under section 241 (a) (11) of the Immigration and Nationality Act,

as amended by the Act of July 14, 1960.* CHARGES: Order: Act of 1952—Section 241(a)(1) [8 U.S.C. 1251 (a) (1)]-Excludable

at entry, section 212(a) (23)-Convicted of violation of law relating to illicit possession of narcotic drugs-Section 4, paragraph 1, of the Opium and Narcotic Drug Act, R.S.C. 1952, C. 201 and amend

ments-Canabis sativa (marihuana). Lodged: Act of 1952—Section 241 (a) (11) [8 U.S.C. 1251 (a) (11)]-Convicted

at any time of violation of law or regulation relating to illicit possession of marihuana-Section 4, paragraph 1, of Opium and Narcotic Drug Act of Canada, R.S.C. 1952, C. 201 and amendments.

The case comes forward on appeal from the order of the special inquiry officer dated February 8, 1963 ordering that the respondent be deported to Canada on the lodged charge.

The record relates to a native of Hungary, a citizen of Canada, who last entered the United States at Highgate Springs, Vermont on or about August 4, 1959. On August 1, 1956 he was convicted in the District of Montreal, Province of Quebec, Canada of the crime of unlawful possession of a narcotic drug, marihuana, otherwise known as canabis sativa, in violation of section 4, Paragraph 1 of the Opium and Narcotic Drug Act, R.S.C. 1952, C. 201, and amendments, and was sentenced to serve a term of imprisonment for six months.

Deportability is sought under section 241 (a) (11) of the Immigration and Nationality Act as amended by section 9 of the Act of July 14, 1960 which amended the Act to include illicit possession of marihuana and to provide specifically for the deportation from the United States of a person who had been convicted under any law or regulation relating to the illicit possession of marihuana. The record establishes that the respondent has been convicted of a law relating to the illicit possession of marihuana. Counsel, however, argues that the law is an ex post facto law and therefore unconstitutional and urges that the proceedings be terminated because Congress in enacting the law intended to render deportable a person only if he had been convicted of violation of such law after July 14, 1960. Since the respondent had been convicted on August 1, 1956, and not after entry, counsel contends that the charge must fail.

*Order of deportation affirmed, Gardos v. Immigration and Naturalization Service, 324 F.2d 179 (C.A. 2, 1963).

Section 241 (a) (11) of the Immigration and Nationality Act as amended by the Act of July 14, 1960 provides for the deportation of any alien in the United States who "is, or hereafter at any time after entry has been, a narcotic drug addict, or who at any time has been convicted of a violation of, or a conspiracy to violate, any law or regulation relating to the illicit possession of or traffic in narcotic drugs or marihuana * * *". The Report of the Senate to accompany House Joint Resolution 397, of which the amended statute was a part, shows that the purpose of the Joint Resolution was to clarify the legislative intent expressed in sections 212(a) (23) and 241(a)(11) of the Immigration and Nationality Act providing, respectively, for the exclusion and deportation from the United States of aliens convicted of a violation of narcotic laws.1

The comment of the Acting Secretary of the Treasury dated January 13, 1960 was to the effect that there can be no valid distinction for the deportation or exclusion of an alien who has been convicted of the illicit possession of narcotic drugs (which is now the law) and not such a provision for an alien who has been convicted of the illicit possession of marihuana; aliens who are convicted of violation of narcotic or marihuana laws should be excluded or subject to deportation. A letter from the Deputy Attorney General dated January 13, 1960, expressing the views of the Department of Justice, refers to the decisions of the United States District Court for the Southern District of California in Mendoza-Rivera v. Del Guercio, 160 F. Supp. 473 and Rojas-Gutierrez v. Hoy, 161 F. Supp. 448, approved 260 F. 2d 457 and 260 F.2d 490 respectively, stated that the bill would amend existing laws, sections 212 (a) (23) and 241 (a) (11), to the end that a conviction of an alien for a violation of any law relating to illicit possession of marihuana shall render him excludable or deportable. In a subsequent analysis of the Joint Resolution it was pointed out that sections 8 and 9 of the Joint Resolution as amended would amend

* Senate Report No. 1651 (86th Cong., 2d Sess.) p. 3.

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